107 S4334 IS: Rights for the Transportation Security Administration Workforce Act of 2024
U.S. Senate
2024-05-14
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
118th CONGRESS
2d Session
S. 4334
IN THE SENATE OF THE UNITED STATES
May 14, 2024
Mr. Schatz (for himself, Mr. Peters, Mr. Casey, Mr. Warnock, Mr. Hickenlooper, Mr. Carper, Mr. Heinrich, Ms. Hirono, Ms. Klobuchar, Mr. Sanders, Mr. Fetterman, Ms. Stabenow, Ms. Cortez Masto, Mr. Kaine, Ms. Smith, Ms. Rosen, Ms. Duckworth, Mr. Padilla, Mr. Wyden, Mrs. Shaheen, Mr. Bennet, Ms. Butler, Mr. Merkley, Mr. Durbin, Mr. Tester, Mr. Blumenthal, Mr. Van Hollen, Ms. Warren, Ms. Hassan, and Mr. Cardin) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
A BILL
To enhance the security operations of the Transportation Security Administration and stability of the transportation security workforce by applying the personnel system under title 5, United States Code, to employees of the Transportation Security Administration, and for other purposes.
1.

Short title
This Act may be cited as the “Rights for the Transportation Security Administration Workforce Act of 2024” or the “Rights for the TSA Workforce Act of 2024”.
2.

Definitions
In this Act—
(1)
the term 2022 Determination means the publication, entitled “Determination on Transportation Security Officers and Collective Bargaining”, issued on December 30, 2022, by Administrator David P. Pekoske, as modified, or any superseding subsequent determination;
(2)
the term adjusted basic pay means—
(A)
the rate of pay fixed by law or administrative action for a position occupied by a covered employee before any deductions; and
(B)
any regular, fixed supplemental payment for non-overtime hours of work creditable as basic pay for retirement purposes, including any applicable locality payment and any special rate supplement;
(3)
the term Administration means the Transportation Security Administration;
(4)
the term Administrator means the Administrator of the Administration;
(5)
the term appropriate congressional committees means—
(A)
the Committee on Commerce, Science, and Transportation of the Senate;
(B)
the Committee on Homeland Security and Governmental Affairs of the Senate;
(C)
the Committee on Homeland Security of the House of Representatives; and
(D)
the Committee on Oversight and Accountability of the House of Representatives;
(6)
the term conversion date means the date on which subparagraphs (A) through (F) of section 3(c)(1) take effect;
(7)
the term covered employee means an employee who occupies a covered position;
(8)
the term covered position means a position within the Administration;
(9)
the term employee has the meaning given the term in section 2105 of title 5, United States Code;
(10)
the term screening agent means a full- or part-time non-supervisory covered employee carrying out screening functions under section 44901 of title 49, United States Code;
(11)
the term Secretary means the Secretary of Homeland Security; and
(12)
the term TSA personnel management system means any personnel management system established or modified under—
(A)
section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note); or
(B)
section 114(n) of title 49, United States Code.
3.

Conversion of TSA personnel
(a)

Restrictions on certain personnel authorities
(1)

In general
Notwithstanding any other provision of law, effective as of the date of enactment of this Act—
(A)
any TSA personnel management system in use for covered employees and covered positions on the day before that date of enactment, and any personnel management policy, letter, guideline, or directive of the Administration in effect on that day, may not be modified;
(B)
no personnel management policy, letter, guideline, or directive of the Administration that was not established before that date issued pursuant to section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note) or section 114(n) of title 49, United States Code, may be established; and
(C)
any authority to establish or adjust a human resources management system under chapter 97 of title 5, United States Code, shall terminate with respect to covered employees and covered positions.
(2)

Exceptions
(A)

Pay
Notwithstanding paragraph (1)(A), the limitation in that paragraph shall not apply to any personnel management policy, letter, guideline, or directive of the Administration relating to annual adjustments to pay schedules and locality-based comparability payments in order to maintain parity with those adjustments authorized under sections 5303, 5304, 5304a, and 5318 of title 5, United States Code.
(B)

Additional policy
Notwithstanding paragraph (1)(B), new personnel management policy of the Administration may be established if—
(i)
that policy is needed to resolve a matter not specifically addressed in policy in effect on the date of enactment of this Act; and
(ii)
the Secretary provides that policy, with an explanation of the necessity of that policy, to the appropriate congressional committees not later than 7 days after the date on which the policy is issued.
(C)

Emerging threats to transportation security during transition period
(i)

In general
Notwithstanding paragraph (1), any personnel management policy, letter, guideline, or directive of the Administration relating to an emerging threat to transportation security, including national emergencies or disasters and public health threats to transportation security, may be modified or established until the conversion date.
(ii)

Submission to Congress
Not later than 7 days after the date on which any personnel management policy, letter, guideline, or directive of the Administration is modified or established under clause (i), the Secretary shall provide to the appropriate congressional committees that established or modified policy, letter, guideline, or directive, as applicable, which shall contain an explanation of the necessity of that establishment or modification.
(b)

Personnel authorities during transition period
Any TSA personnel management system in use for covered employees and covered positions on the day before the date of enactment of this Act, and any personnel management policy, letter, guideline, or directive of the Administration in effect on the day before the date of enactment of this Act, shall remain in effect until the conversion date.
(c)

Transition to title 5
(1)

In general
Except as provided in paragraph (2), effective beginning on a date determined by the Secretary, but in no event later than December 31, 2024—
(A)
all TSA personnel management systems shall cease to be in effect;
(B)
section 114(n) of title 49, United States Code, is repealed;
(C)
section 111(d) of the Aviation and Transportation Security Act (Public Law 107–71; 49 U.S.C. 44935 note) is repealed;
(D)
any personnel management policy, letter, guideline, or directive of the Administration, including the 2022 Determination, shall cease to be effective;
(E)
any human resources management system established or adjusted under chapter 97 of title 5, United States Code, with respect to covered employees or covered positions shall cease to be effective; and
(F)
covered employees and covered positions shall be subject to the provisions of title 5, United States Code.
(2)

Chapters 71 and 77 of title 5
Not later than 90 days after the date of enactment of this Act—
(A)
chapters 71 and 77 of title 5, United States Code, shall apply to covered employees carrying out screening functions pursuant to section 44901 of title 49, United States Code; and
(B)
any policy, letter, guideline, or directive issued under section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note) relating to matters otherwise covered by chapter 71 or 77 of title 5, United States Code, shall cease to be effective.
(3)

Assistance of other agencies
Not later than 180 days after the date of enactment of this Act, or December 31, 2024, whichever is earlier—
(A)
the Director of the Office of Personnel Management shall establish a position series and classification standard for the positions of Transportation Security Officer, Federal air marshal, Transportation Security Inspector, and other positions requested by the Administrator; and
(B)
the National Finance Center of the Department of Agriculture shall make necessary changes to Financial Management Services and Human Resources Management Services to ensure payroll, leave, and other personnel processing systems for covered employees are consistent with chapter 53 of title 5, United States Code, and provide functions as needed to implement this Act.
(d)

Safeguards on grievances and appeals
(1)

In general
Each covered employee with a grievance or appeal pending within the Administration on the date of enactment of this Act or initiated during the period described in subsection (c)(2) may have that grievance or appeal removed to proceedings pursuant to title 5, United States Code, or continued within the Administration.
(2)

Authority
With respect to any grievance or appeal continued within the Administration under paragraph (1), the Administrator may consider and finally adjudicate that grievance or appeal notwithstanding any other provision of this Act.
(3)

Preservation of rights
Notwithstanding any other provision of law, any appeal or grievance continued under this subsection that is not finally adjudicated under paragraph (2) shall be preserved and all timelines tolled until the rights afforded by application of chapters 71 and 77 of title 5, United States Code, are made available under subsection (c)(2).
4.

Transition rules
(a)

Nonreduction in pay and compensation
Under such pay conversion rules as the Secretary may prescribe to carry out this Act, a covered employee converted from a TSA personnel management system to the provisions of title 5, United States Code, under section 3(c)(1)(F)—
(1)
may not be subject to any reduction in either the rate of adjusted basic pay payable or law enforcement availability pay payable to that covered employee; and
(2)
shall be credited for years of service in a specific pay band under a TSA personnel management system as if the covered employee had served in an equivalent General Schedule position at the same grade, for purposes of determining the appropriate step within a grade at which to establish the converted rate of pay of the covered employee.
(b)

Retirement pay
(1)

In general
Not later than 90 days after the date of enactment of this Act, the Secretary shall submit to the appropriate congressional committees a proposal, including proposed legislative changes if needed, for determining the average rate of basic pay of any covered employee who retires not later than 3 years after the conversion date for purposes of calculating the retirement annuity of the covered employee.
(2)

Requirements
The proposal required under paragraph (1) shall be structured in a manner that—
(A)
is consistent with title 5, United States Code; and
(B)
appropriately accounts for the service of a covered employee to which the proposal applies, and the annual rate of basic pay of such a covered employee, following the conversion date.
(c)

Limitation on premium pay
(1)

In general
Notwithstanding section 5547 of title 5, United States Code, or any other provision of law, a Federal air marshal or criminal investigator who is appointed to that position before the date of enactment of this Act may be eligible for premium pay up to the maximum level allowed by the Administrator before the date of enactment of this Act.
(2)

OPM recognition
The Director of the Office of Personnel Management shall recognize premium pay paid pursuant to paragraph (1) as fully creditable for the purposes of calculating pay and retirement benefits.
(d)

Preservation of law enforcement availability pay and overtime pay rates for Federal air marshals
(1)

LEAP
Section 5545a of title 5, United States Code, is amended—
(A)
in subsection (a)(2), in the matter preceding subparagraph (A), by striking “subsection (k)” and inserting “subsection (l)”;
(B)
by redesignating subsection (k) as subsection (l); and
(C)
by inserting after subsection (j) the following:
“(k)
The provisions of subsections (a) through (h) providing for availability pay shall apply to any Federal air marshal who is an employee of the Transportation Security Administration.”.
(2)

Overtime
Section 5542 of title 5, United States Code, is amended by adding at the end the following:
“(i)
Notwithstanding any other provision of law, a Federal air marshal who is an employee of the Transportation Security Administration shall receive overtime pay under this section, at such a rate and in such a manner so that such Federal air marshal does not receive less overtime pay than such Federal air marshal would receive were that Federal air marshal subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207).”.
(3)

Effective date
The amendments made by paragraphs (1) and (2) shall apply beginning on the conversion date.
(e)

Collective bargaining unit
Notwithstanding section 7112 of title 5, United States Code, following the application of chapter 71 of that title pursuant to section 3(c)(2) of this Act, screening agents shall remain eligible to form a collective bargaining unit.
(f)

Preservation of other rights
The Secretary shall take any actions necessary to ensure that the following rights are preserved and available for each covered employee beginning on the conversion date, and for any covered employee appointed after the conversion date, and continue to remain available to covered employees after the conversion date:
(1)
Any annual leave, sick leave, or other paid leave accrued, accumulated, or otherwise available to a covered employee immediately before the conversion date shall remain available to the covered employee until used, subject to any limitation on accumulated leave under chapter 63 of title 5, United States Code.
(2)
Part-time screening agents pay premiums under chapter 89 of title 5, United States Code, on the same basis as full-time covered employees.
(3)
Notwithstanding section 6329a of title 5, United States Code, covered employees are provided appropriate leave during national emergencies to assist the covered employees and ensure the Administration meets mission requirements.
(4)
Eligible screening agents receive a split-shift differential for regularly scheduled split-shift work as well as regularly scheduled overtime and irregular and occasional split-shift work.
(5)
Notwithstanding sections subsections (c), (e), and (f) of section 5754 of title 5, United States Code, eligible covered employees receive group retention incentives, as appropriate.
5.

Consultation requirement
(a)

Exclusive representative
(1)

In general
(A)

Application
Beginning on the date that chapter 71 of title 5, United States Code (referred to in this subsection as “chapter 71”), begins to apply to covered employees under section 3(c)(2), the labor organization certified by the Federal Labor Relations Authority on June 29, 2011, or any successor labor organization, shall be treated as the exclusive representative of screening agents and shall be the exclusive representative for screening agents under chapter 71, with full rights under chapter 71.
(B)

Rule of construction
Nothing in this subsection may be construed to prevent covered employees from selecting an exclusive representative other than the labor organization described in paragraph (1) for purposes of collective bargaining under chapter 71.
(2)

National level
(A)

In general
Notwithstanding any provision of chapter 71, collective bargaining for any unit of covered employees shall occur at the national level, but may be supplemented by local level bargaining and local level agreements in furtherance of elements of a national agreement or on issues of any local unit of covered employees not otherwise covered by a national agreement.
(B)

Mutual consent required
Local-level bargaining and local-level agreements described in subparagraph (A) shall occur only by mutual consent of the exclusive representative of screening agents and the Federal Security Director (or a designee of such an official) of those screening agents.
(3)

Current agreement
Any collective bargaining agreement covering such personnel in effect on the date of enactment of this Act shall remain in effect until a collective bargaining agreement is entered into under chapter 71, unless the Administrator and exclusive representative mutually agree to revisions to such an agreement.
(b)

Consultation process
(1)

In general
Not later than 7 days after the date of enactment of this Act, the Secretary shall consult with the exclusive representative for the screening agents described in subsection (a)(1) under chapter 71 of title 5, United States Code, on the formulation of plans and deadlines to carry out the conversion, under this Act, of those screening agents.
(2)

Written plans
Before the date on which chapter 71 of title 5, United States Code, begins to apply under section 3(c)(2), the Secretary shall provide (in writing) to the exclusive representative described in paragraph (1) the plans for how the Secretary intends to carry out the conversion of covered employees under this Act, including with respect to such matters as—
(A)
the anticipated conversion date; and
(B)
measures to ensure compliance with sections 3 and 4.
(c)

Required agency response
If any views or recommendations are presented under subsection (b) by the exclusive representative described in that subsection, the Secretary shall—
(1)
consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and
(2)
provide the exclusive representative a written statement of the reasons for the final actions to be taken.
6.

No right to strike
Nothing in this Act may be considered—
(1)
to repeal or otherwise affect—
(A)
section 1918 of title 18, United States Code (relating to disloyalty and asserting the right to strike against the Government); or
(B)
section 7311 of title 5, United States Code (relating to loyalty and striking); or
(2)
to otherwise authorize any activity that is not permitted under a provision of law described in subparagraph (A) or (B) of paragraph (1).
7.

Proposal on hiring and contracting background check requirements
Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to the appropriate congressional committees a plan to harmonize and update, for the purposes of making appointments and for authorizing or entering into any contract for service, the restrictions under section 70105(c) of title 46, United States Code, (relating to the issuance of transportation security cards) and section 44936 of title 49, United States Code, (relating to employment investigations and restrictions).
8.

Comptroller General reviews
(a)

Review of recruitment
(1)

In general
Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the efforts of the Administration regarding recruitment, including recruitment efforts relating to veterans, the dependents of veterans, members of the Armed Forces, and the dependents of such members.
(2)

Recruitment
The report required under paragraph (1) shall include recommendations regarding how the Administration may improve the recruitment efforts described in that paragraph.
(b)

Review of implementation
The Comptroller General of the United States shall—
(1)
not later than 60 days after the conversion date, commence a review of the implementation of this Act; and
(2)
not later than 1 year after the conversion date, submit to Congress a report on the review conducted under paragraph (1).
(c)

Review of promotion policies and leadership diversity
Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report—
(1)
on the efforts of the Administration to ensure that recruitment, appointment, promotion, and advancement opportunities within the Administration are equitable and provide for demographics among senior leadership that are reflective of the workforce demographics of the United States; and
(2)
that, to the extent possible, includes—
(A)
an overview and analysis of the current (as of the date on which the report is submitted) demographics of the leadership of the Administration; and
(B)
as appropriate, recommendations to improve appointment and promotion procedures and diversity in leadership roles, which may include recommendations for how the Administration can better promote from within the Administration and retain and advance covered employees.
(d)

Review of harassment and assault policies and protections
(1)

In general
Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the efforts of the Administration to ensure the safety of the staff of the Administration with respect to harassment and assault in the workplace, such as incidents—
(A)
of sexual harassment and violence and harassment and violence motivated by the perceived race, ethnicity, religion, gender identity, or sexuality of an individual; and
(B)
in which the alleged perpetrator is a member of the general public.
(2)

Inclusions
The report required under paragraph (1) shall include—
(A)
an overview and analysis of the current (as of the date on which the report is submitted) policies and response procedures of the Administration;
(B)
a detailed description of if, when, and how the policies described in subparagraph (A) fail to adequately protect covered employees; and
(C)
as appropriate, recommendations for steps the Administration can take to better protect covered employees from harassment and violence in the workplace.
(3)

Opportunity for comment
In conducting the review required under this subsection, the Comptroller General of the United States shall provide opportunities for covered employees of all levels and positions, and labor organizations and associations representing those covered employees, to submit comments, including in an anonymous form, and take those comments into account in the final recommendations of the Comptroller General.
9.

Sense of Congress
It is the sense of Congress that—
(1)
TSA personnel management systems provide insufficient benefits and workplace protections to the workforce that secures the transportation systems of the United States;
(2)
covered employees should be provided protections and benefits under title 5, United States Code; and
(3)
the provision of the protections and benefits described in paragraph (2) should not result in a reduction of pay or benefits to current covered employees.
10.

Assistance for Federal Air Marshal Service
The Administrator shall communicate with organizations representing a significant number of Federal air marshals, to the extent provided by law, to address concerns regarding Federal Air Marshals related to the following:
(1)
Mental health.
(2)
Suicide rates.
(3)
Morale and recruitment.
(4)
Equipment and training.
(5)
Work schedules and shifts, including mandated periods of rest.
(6)
Any other personnel issues the Administrator determines appropriate.
11.

Study on feasibility of commuting benefits
(a)

In general
Not later than 270 days after the date of enactment of this Act, the Administrator shall submit to the appropriate congressional committees a feasibility study on allowing covered employees carrying out screening functions under section 44901 of title 49, United States Code, to treat as hours of employment time spent by those covered employees regularly traveling between parking lots and bus and transit stops of airports and screening checkpoints before and after the regular work day.
(b)

Considerations
In conducting the study required under subsection (a), the Administrator shall consider—
(1)
the amount of time needed to travel to and from parking lots and bus and transit stops of airports at small hub airports, medium hub airports, and large hub airports, as those terms are defined in section 40102 of title 49, United States Code;
(2)
the feasibility of using mobile phones and location data to allow covered employees to report their arrival to and departure from parking lots and bus and transit stops of airports; and
(3)
the estimated costs of treating the amount of time described in paragraph (1) as hours of employment time spent.
12.

Briefing on assaults and threats on TSA employees
Not later than 90 days after the date of enactment of this Act, the Administrator shall brief the appropriate congressional committees regarding the following:
(1)
Reports to the Administrator of instances of physical or verbal assaults or threats made by members of the general public against screening agents since January 1, 2019.
(2)
Procedures for reporting the assaults and threats described in paragraph (1), including information on how the Administrator communicates the availability of those procedures.
(3)
Any steps taken by the Administration to prevent and respond to the assaults and threats described in paragraph (1).
(4)
Any related civil actions and criminal referrals made annually since January 1, 2019.
(5)
Any additional authorities needed by the Administrator to better prevent or respond to the assaults and threats described in paragraph (1).
13.

Annual reports on TSA workforce
Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Administrator shall submit to the appropriate congressional committees a report that contains the following:
(1)
An analysis of the Federal Employee Viewpoint Survey of the Office of Personnel Management to determine job satisfaction rates of covered employees.
(2)
Information relating to retention rates of covered employees at each airport, including transfers, in addition to aggregate retention rates of covered employees across the workforce of the Administration.
(3)
Information relating to actions taken by the Administration intended to improve workforce morale and retention.
14.

Authorization of appropriations
There is authorized to be appropriated such sums as may be necessary, to remain available until expended, to carry out this Act and the amendments made by this Act.